ELRC157-21/22GP

Case Number: ELRC157-21/22GP
Commissioner: Vusi Moyo
Date of Award: 25 November 2021


In the ARBITRATION between


Simphiwe Masuku APPLICANT


And


Gauteng Department of Education RESPONDENT


DETAILS OF HEARING AND REPRESENTATION

1. This is an arbitration award issued in terms of Section 138(7)(a) of the Labour Relations Act 66 of 1995 as amended (hereafter referred to as “LRA”).

2. The matter was set down for an arbitration process in terms of Section 191(1) (5)(a) of the LRA. The arbitration hearing was held virtually under the auspices of the ELRC over a number of days culminating on the 03rd of November 2021.

3. The Applicant was represented by Mr John Ngubane, an Official of a trade union called UCIMESHAWU. The Respondent was represented by its Ms Valerie Mnisi-Dhlamini, an Official of the Department of Education. The proceedings were conducted in English. All submissions were both digitally and manually recorded.

ISSUE TO BE DECIDED

4. Whether the Applicant was constructively dismissed by the Respondent or not.

RELIEF SOUGHT

5. The Applicant sought reinstatement as a remedy for the alleged constructive dismissal in terms of Section 193 of the LRA.

BACKGROUND TO THE ISSUE

6. This is a matter related to an alleged constructive dismissal.

SURVEY OF EVIDENCE AND ARGUMENT

7. As noted above in paragraph 3, these proceedings were digitally recorded, what appears hereunder constitutes a summary of the evidence deduced by the parties in so far as is relevant for the purpose of this arbitration; it is by no means comprehensive minutes of what transpired in the course of these proceedings. Section 138(7)(a) of the LRA stipulates that within 14 days of conclusion of the arbitration proceedings the commissioner must issue an arbitration award with brief reasons. What follows underneath accordingly serves as my brief reasons:

8. As is the case in most constructive dismissal disputes, the existence of a dismissal was disputed by the Respondent. The Applicant party therefore bore the onus of proof to discharge the existence of same. For this purpose, the Applicant testified first. He was the sole witness for his case. The Respondent called two witnesses thereafter. All witnesses testified under oath.

9. The following are common cause: The Applicant was employed by the Gauteng Department of Education as an Educator. From 28 January 2020 – January 2021 he failed to render teaching services to learners but was paid up to end of November 2020. His salary was frozen around December 2020. On the 05th of January 2021, the Applicant lodged a grievance regarding the non-payment of his salary for December 2020. The grievance was responded to on the 18th of January 2021. On the 25th of January 2021 the Applicant was sent a letter by the Respondent to notify him of a “Decision to invoke Section 14(1)(a) of the Employment of Educators Act 76 of 1998.” (The act will hereafter be referred to as the “EEA”) The Applicant duly responded in writing on the 27th of January 2021. On the 22nd of April 2021, the Applicant’s services as an Educator were terminated in terms of the EEA.

10. The Applicant testified under oath by reading a three page typed statement onto record.

11. The Applicant quoted incidents dating back to 2018 and 2019. I regarded these as irrelevant and focused on the relevant period in which he claims his employment became intolerable. This period is December 2020 and January 2021 when his salary was not paid thus rendering his employment intolerable. The relevant parts of his statement are quoted verbatim below:

January 2020
I was working at Phefeni high and attending my hearing (evidence title:
Gauteng Department of education, johanessburg west district, bundle of
document) from October 2019 til 08 March 2020. 28 January 2020 the
principal called me to the office informing me that Jafta Lizwe requested my
presence at the district office, I left immediately and when I arrived at the
office Lizwe Jafta “shouted” giving me various reasons for being recalled back
to the district: He said to me that I cant do whatever I ‘wanted’, he cited
placement at another school as being the reason for my removal from Phefeni
high school ( only when he had us walk to another colleague of his to “explain
that I would be reporting to the office from the next day). During this informal
meeting he was disrespectful and rude. He instructed me to report “outside his office”. Lizwe Jafta did not make any formal arrangements/ procedures to
accommodate me coming into the district, he did not provide me with a time
sheet or a reasonable place to report. Nevertheless, I reported to the
department every morning, sat in the waiting area and at the same time
attending to my hearing for mark tempering. The case was concluded 8 th of
March 2020 and Mrs Smit confessed to calling me a “bloody bastard” during
the hearing. Evidence page 4-8 is the conclusion of the case, I was supposed
to receive an outcome on the case two weeks later but unfortunately there has not been an outcome till today.

On the 26 th of March covid-19 had the country on lockdown and I like many
other South Africans was confined to my home and when we moved to level 4 at the end of April I went to the department only to find that there was no
access granted into the building so I stayed at home for the remainder of the
month. I went back to the district when schools reopened but even then, I was
still denied access without an appointment as there were some covid-19
measures in place. Regardless of the circumstance of not being allowed into
the building I came and parked in at the district offices every day of the week
except for school holidays. As heart breaking and depressing it was that I was
doing absolutely nothing everyday and being neglected by my employer I
continued to do the ‘right thing’ by coming to the district office, hoping that
they will contact me. Please use recording 1 as evidence.

On 18 December 2020 the department of education did not pay me my salary
without contacting me regardless of my efforts to report to the district every
day, that same morning I was at the department ‘demanding’ to speak to
anyone from the HR department regarding my salary which I was permitted to
speak to a HR lady whose name I have forgotten but I had recorded our
conversation. She can be heard stating that my January salary was frozen but
my December salary was paid to me, which was a blatant lie. Please use
recording 2 as evidence.

My employer only contacted me on 26 January 2021 by email sending me an
audi letter in which I responded on the 27 January 2021 (evidence email titled:
audi letter and response) and on the 12 th February 2021 I received a letter
stating that I have been dismissed (email title: dismissal letter). I was never
contacted by my employer in any way to inform me that section 14(1)(a) was
being implemented. 13 August 2021 I received my termination letter (Please
take note on the date on the letter and date received.)

12. In his written statement the Applicant stated that he received the termination letter on the 13th of August 2021. However, in his ELRC Form 1, it is stated that the date of dismissal is 01 April 2021. The request for arbitration form was signed by the Applicant on the 05th of July 2021.

13. Under cross examination, the Applicant denied that he deserted his post. He was emphatic that he reported for duty at the District Office. When questioned about who can verify this statement, he responded that he was stopped by Security Officers from entering the premises. However, on the 18th of December 2020 when he arrived at the offices to challenge the non-payment of his salary he was allowed into the building. On the second time he appeared at the District offices, the Applicant stated that he lied to Security Officers in order to be allowed into the building. The Applicant attested that from April 2020 to December 2020 he arrived at the District Offices and sat outside with no one asking him anything. He conceded that he was paid for the entire period that he was not working. He complained that no one sent him any communication that he was absconding nor consulted that his salary will be stopped.


14. The Respondent called two witnesses to refute the Applicant’s claims. The first witness was Advocate Melta Manganye. She testified under oath as follows:

15. Advocate Manganye emphasized that they never saw the Applicant at the District Office. She testified that when her unit became aware that the Applicant was lost in the system between two schools, the HR department was mandated to freeze his salary. It was then that the Applicant resurfaced to demand that the Department must pay his salary. This never happened.

16. Advocate Manganye testified that the last time the Applicant worked was when he left Phefeni High School on the 27th of January 2020. Clarification was provided that this led to an invocation of Section 14(1)(a) of the EEA as the Applicant was deemed as having discharged himself. In this regard, testimony was provided that the Applicant was dismissed by operation of law, thus disproving his claim of a constructive dismissal.

17. Advocate Manganye submitted her view that the Applicant “played the system” as he knew that no one will pick up his whereabouts over the entire period in which he was paid without rendering any services. She testified that the Respondent only became aware on the 05th of November 2020 when the Applicant was sought to be issued with a copy of his disciplinary hearing outcome. The focal point of her testimony was that the Applicant’s whereabouts between the period: 28 January 2020 – 05 November 2020 were unknown. In spite of these circumstances, the Applicant received full remuneration for the entire period. It was therefore Advocate Manganye’s attestation that if the Applicant’s salary was never stopped, he would have continued to stay wherever he was indefinitely. Furthermore, she testified that the Department was never made aware of the Applicant’s illness when the EEA was invoked.

18. Under cross examination, Advocate Manganye detailed the Respondent’s abscondment procedure and explicated how it led to the freezing of salaries. When challenged on the 10 months’ period, she responded that the Applicant’s case was peculiar and there was a “loophole”. As a result, he managed to “manipulate” and “trick” the system to hide for months until they became aware. She could not give an explanation on why the outcome of the Applicant’s disciplinary hearing was delayed for months. However, in the meantime the Advocate asserted that the Applicant should have reported to the HR unit at the District Office. She further opined that a claim of constructive dismissal was misplaced as the Applicant abandoned the employer, hence Section 14(1)(a) of the EEA was invoked due to the absenteeism. She made it clear that, “I don’t agree that he can abandon the employer and expect to get a salary.”

19. When questioned on what the employer did to contact the absent employee, Advocate Manganye responded that the Applicant’s cellphone did not go through at the time. She further stated that the Applicant’s grievance was not lodged in terms of the Department’s procedure. She denied any knowledge of the grievance lodged on the 05th of January 2021. She argued that in any case, when this happened the Respondent had already frozen his salary and was intending to terminate his services in terms of the EEA. In any event, she argued that the grievance was by then irrelevant. She concluded that the Applicant abandoned the employer for no valid reason.

20. In re-examination she clarified that the grievance form was not signed and there is no evidence that it was duly received. On the medical certificate of the Applicant, she clarified that it does not cover the entire period of absence from 28 January 2020.

21. The second witness of the Respondent was Mr Lizwe Jafta. He testified under oath as follows:

22. Mr Jafta is the Assistant Director of HR Provisioning at the Johannesburg West District. He testified that the Applicant was “removed” from Westridge Secondary School and placed at the District Office. Mr Jafta stated that he was asked for a placement intervention by the Director, Mr Mahanye. The Director asked him to find a school that could accommodate the Applicant close to where he stays. The Applicant was then placed at Phefeni High School. Mr Jafta indicated that he left the Applicant under care of the Principal. It was established later that the Applicant was no longer reporting to the school. The Principal furnished a letter about when the Applicant was last seen at the school. The Applicant and the Principal could not see eye-to-eye and he was then asked to do a handover and report back to Mr Jafta at the Office. However, the Applicant never came back to report to Mr Jafta.

23. Mr Jafta testified that he used to see the Applicant seated at the visitors’ couches at the DM Office. He clarified that this was before the national lockdown was imposed.

24. Under cross examination Mr Jafta disputed the Applicant’s version that he found a school by himself. He differentiated between the temporary placement of the Applicant at Phefeni as opposed to a transfer which never materialised. He confirmed that he knew that the Applicant’s salary was stopped sometime around December 2020. He did not have further info on the salary matter as his office does not deal with salaries. Mr Jafta also testified that he does not deal with grievances as they are handled by a different unit. In conclusion of evidence in chief, he emphasized that the Applicant absconded himself.

25. Under re-examination, Mr Jafta averred that he last saw the Applicant when he went to do a handover at Phefeni High school. The next time he saw him was when he came to tell him that he was not paid. Subsequently, he referred him to the DM Office to attend to his pay query. Mr Jafta could not understand how the employer made the Applicant’s employment intolerable as the Applicant failed to render services. Mr Jafta concluded by a remark that the Applicant only came back because his salary was stopped.

26. Closing arguments were presented in writing by both parties.

ANALYSIS OF EVIDENCE AND ARGUMENT

27. I have taken the full body of evidence before me into account as per the elucidation held in IBM South Africa (Pty) Ltd v CCMA & Others [ZALACJHB] 15 (handed down on 19 April 2016) but shall only refer to salient submissions crucial for my findings and determination of the dispute.

28. Despite arbitration being a quasi-judicial process, one must always follow the Charles Dickens rule of “take nothing on its looks; take everything on evidence”. In this matter the legal question that needs to be answered is whether Mr Simphiwe Masuku has been dismissed. If so, was that dismissal unfair and can it be referred to as a constructive dismissal?

29. Section 23(1) of the Constitution states that everyone has the right to fair labour practices. Section 185(a) of the LRA states that every employee has the right - not to be unfairly dismissed. Section 186(1)(e) of the LRA states that “Dismissal” means that – (e) an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee; Section 192 (1) states that ‘In any proceedings concerning any dismissal, the employee must establish the existence of a dismissal. Section 192(2) proceeds thus, ‘If the existence of a dismissal is established, the employer must prove that the dismissal is fair.’

30. In Sergio Carlos v IBM South Africa (Pty) Ltd (2006) (LAC), unreported, the Labour Court held that the key elements of a constructive dismissal established in sec 186(1)(e) in that,
(a) there must be a termination of the contract of employment;
(b) the employee must be the one who terminated the contract of employment;
(c) the employee’s reason for the termination of the contract employment must be that continued employment had become intolerable; and
(d) the employer must be the one who made continued employment intolerable for the employee.

31. In Albany Bakeries v Van Wyk as well as Solid Doors v Theron the court comprehensively outlined the requirements of a constructive dismissal.

32. Later in 2009, the Labour Court in the Eagleton matter simplified the requirements into three basic requirements to successfully claim for constructive dismissal as follows
a. the employee terminated the contract of employment; 

b. continued employment had become intolerable for the employee; and 

c. the employer must have made continued employment intolerable.

‘When an employee resigns or terminates the contract of employment as a result of constructive dismissal, such employee is in fact indicating that the situation has become so unbearable that the employee cannot fulfil his/ her duties. The employee is in effect saying that he or she would have carried on working indefinitely had the unbearable situation not been created. He does so on the basis that he does not believe that the employer will ever reform or abandon the pattern of creating an unbearable work environment. If he is wrong in this assumption and the employer proves that his/her fears were unfounded, then he has not been constructively dismissed and his/her conduct proves that he has in fact resigned.

33. In dealing with Mr Masuku’s matter, it would be remiss not to highlight Conradie JA, as he was at the time, when he immortalized the phrase that ‘constructive dismissal is not for the asking’! In the four instructive case laws cited above, as well as the literal interpretation of section 186(1)(e) of the LRA, ‘an employee terminated employment’.

34. ‘A constructive dismissal is a two stage enquiry’. The first stage of the constructive dismissal is that at the onset of the proceedings, Mr Masuku had to prove the existence of a dismissal as per section 192(1) of the LRA. This onus of proof on the employee is a tough challenge.

35. In Mr Masuku’s case, there is no evidence of when and how the Applicant terminated his contract of employment. There is no evidence of neither resignation nor abandonment of the workplace due to the alleged intolerability. On the contrary, the Respondent produced a termination letter in terms of the EEA. The termination of employment was therefore never initiated by Mr Masuku as the employee. While dates might be arguable, the Applicant conceded in his written statement that he received a dismissal letter. The evidence directs that the Applicant never made an election to leave his employment. Consequently, it is undisputable that under these circumstances, the Applicant has not managed to reach the key threshold of what makes a constructive dismissal as he never terminated his employment.

36. Mr Masuku also had an option to challenge the non-payment under the provisions of Section 73A of the Basic Conditions of Employment Act 75 of 1997 as amended. He failed to do so. As such, I find that the alleged dismissal was not a last resort and as such the employee had not proven the existence of a constructive dismissal.

37. The Applicant failed to refute the version that he only returned to the employer because his salary was stopped. The Applicant’s version that his employment became intolerable due to non-payment is controverted by the fact that he was paid for months without doing any Educator’s work. No learners were taught by him throughout the afore-going months. Throughout these months, he failed to make himself noticed or heard but as soon as the salary well ran dry he was immediately available and visible to the employer. In his statement he stated that as soon as his salary was not paid on 18 December 2020, “… that same morning I was at the department ‘demanding’ to speak to anyone from the HR department regarding my salary”. He failed to have the same energy when he was not working for months. The version that he was sitting in his car for all these months is not probable as there is no evidence submitted in this regard.

38. ‘In this context, a fitting definition for intolerable is ‘not to be endured’’. The Applicant’s circumstances are not circumstances that can ever be defined as “not to be endured” as he could have referred the non-payment of his salary to the appropriate forum. He also never resigned nor explicitly walked out nor abandoned his employment that had allegedly became intolerable. He thus never initiated the termination of his employment which case law cited above has shown to be the first consideration in analyzing a constructive dismissal claim. It is on this conspectus of factors that Mr Masuku’s claim of intolerability falls to be rejected.

39. Mr Masuku never complained about being paid but not working at all for months. The Respondent’ witnesses’ elucidation that the Applicant only “resurfaced” because his salary was stopped is plausible. This method proved to be effective in addressing the Applicant’s abscondment. Most importantly, the services of the Applicant were terminated in terms of Section 14(1)(a) of the Employment of Educators Act No. 76 of 1998. As a consequence, there was no constructive dismissal. I therefore present the award as follows:

AWARD

40. The Applicant was not subjected to a constructive dismissal by the Respondent.

41. I make no order as to costs.

Dated and signed on 25 November 2021.


Vusi Moyo
ELRC Panellist